R v Erasmus - [2006] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Erasmus [2006] QCA 245

PARTIES:

R
v
ERASMUS, Clive William
(appellant/applicant)

FILE NO/S:

CA No 352 of 2005
SC No 25 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2006

JUDGES:

McMurdo P, Keane JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.

Application for leave to appeal against sentence refused

2.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - appellant convicted by jury of murder of his de facto spouse - appellant argued that learned trial judge failed to direct jury on an apparent inconsistency in one witness's evidence - the evidence concerned was relevant only to one aspect of the Crown's case of motive - appellant argued learned trial judge gave too much weight to evidence of doctor who conducted post-mortem examination - appellant argued learned trial judge's directions gave too much weight to telephone records - whether learned trial judge's directions were adequate

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - learned trial judge admitted evidence of statements made by deceased to a colleague - learned trial judge gave jury warning about use of such evidence - appellant complained learned trial judge's comments on this evidence were inadequate - whether this evidence should have been admitted and whether the warning and comment was adequate

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - appellant sought to rely on alibi at trial and before this Court - appellant gave no notice of alibi to prosecution before he gave evidence at trial - learned trial judge gave directions on alibi and noted appellant's failure to give notice of alibi - whether the judge's directions were appropriate in the circumstances

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES - appellant sought to adduce what was described as new evidence - new evidence was evidence contained in witness statements taken by police - witness statements made available to defence prior to trial - whether these statements cast doubt on the jury's verdict or demonstrate a miscarriage of justice

Criminal Code 1899 (Qld), s 305, s 590A
Evidence Act 1977 (Qld), s 93B, s 93C, s 132B

Ali v The Queen (2005) 79 ALJR 662, cited

De Gruchy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Erasmus

Details

AGLC: R v Erasmus [2006] QCA 245
Case: [2006] QCA 245
Decision Date: 23 June 2006

CaseChat Overview and Summary

The appellant was convicted of the murder of his de facto spouse. The case was heard in the Queensland Court of Appeal. The appeal centered around several grounds, including alleged misdirections and non-directions by the trial judge, the admission of certain evidence, the handling of an alibi, and the consideration of fresh evidence that was available prior to trial. The appellant argued that the trial judge failed to properly direct the jury regarding an inconsistency in the evidence of a witness, did not adequately consider the weight given to specific pieces of evidence, and provided inadequate directions concerning the appellant's alibi.

The Court of Appeal considered whether the trial judge's directions were adequate and whether the judge correctly admitted and commented on certain evidence. The Court examined whether the judge appropriately considered the weight of evidence from a doctor who conducted the post-mortem examination and the significance of telephone records. The Court also assessed the judge's directions and warnings regarding statements made by the deceased to a colleague, and whether these directions were sufficient. Additionally, the Court scrutinized the trial judge's handling of the alibi evidence and the adequacy of the directions provided to the jury in this regard.

The Court of Appeal found that the trial judge's directions were adequate and that the evidence was correctly admitted and commented upon. The Court held that the trial judge appropriately considered the evidence and that no miscarriage of justice had occurred. The Court also found that the fresh evidence, which was available prior to trial, did not cast doubt on the jury's verdict or demonstrate a miscarriage of justice. Consequently, the appeal was dismissed, and the application for leave to appeal against the sentence was refused.

ORDERS:
1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.

Orders

Orders of the court

Appeal dismissed1.

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Erasmus [2006] QCA 245
PARTIES:	R v ERASMUS, Clive William (appellant/applicant)
FILE NO/S:	CA No 352 of 2005 SC No 25 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2006
JUDGES:	McMurdo P, Keane JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed1. Application for leave to appeal against sentence refused 2.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - appellant convicted by jury of murder of his de facto spouse - appellant argued that learned trial judge failed to direct jury on an apparent inconsistency in one witness's evidence - the evidence concerned was relevant only to one aspect of the Crown's case of motive - appellant argued learned trial judge gave too much weight to evidence of doctor who conducted post-mortem examination - appellant argued learned trial judge's directions gave too much weight to telephone records - whether learned trial judge's directions were adequate CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - learned trial judge admitted evidence of statements made by deceased to a colleague - learned trial judge gave jury warning about use of such evidence - appellant complained learned trial judge's comments on this evidence were inadequate - whether this evidence should have been admitted and whether the warning and comment was adequate CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF THE CASE - appellant sought to rely on alibi at trial and before this Court - appellant gave no notice of alibi to prosecution before he gave evidence at trial - learned trial judge gave directions on alibi and noted appellant's failure to give notice of alibi - whether the judge's directions were appropriate in the circumstances CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES - appellant sought to adduce what was described as new evidence - new evidence was evidence contained in witness statements taken by police - witness statements made available to defence prior to trial - whether these statements cast doubt on the jury's verdict or demonstrate a miscarriage of justice Criminal Code 1899 (Qld), s 305, s 590A Evidence Act 1977 (Qld), s 93B, s 93C, s 132B Ali v The Queen (2005) 79 ALJR 662, cited De Gruchy…